Complainant,v.Jeh Johnson, Secretary, Department of Homeland Security (Citizenship and Immigration Services), Agency.

Equal Employment Opportunity Commission

Sep 25, 2015

01-2013-3265-0500 (E.E.O.C. Sep. 25, 2015)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

,
Complainant,

v.

Jeh Johnson,
Secretary,
Department of Homeland Security
(Citizenship and Immigration Services),
Agency.

Appeal No. 0120133265

Agency No. HSCIS229862012

DECISION

Complainant filed an appeal from the Agency’s June 19, 2013, final decision concerning his
equal employment opportunity (EEO) complaint alleging employment discrimination in
violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. §
2000e et seq., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as
amended, 29 U.S.C. § 621 et seq. The Commission deems the appeal timely and accepts it
pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission AFFIRMS
the Agency’s final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Immigration
Services Officer (ISO), GS-1801-12, in the Agency’s Citizenship and Immigration Services, San
Bernardino Field Office, in San Bernardino, California. On November 29, 2012, Complainant
filed an EEO complaint alleging that the Agency discriminated against him on the bases of race
(Filipino), national origin (Philippines), disability (mental), and age (61) when:

1. from October 2009 through November 22, 2011, management:

a. dropped files on Complainant's desk;

b. stated Complainant would never receive a high performance rating;

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c. claimed there was a customer allegation against Complainant;

d. stated Complainant was too old and should retire;

e. made comments regarding Complainant providing special treatment to
Filipino applicants;

f. returned work to Complainant in error; and

g. issued Complainant a poor performance rating.

2. from July 6, 2012, through September 11, 2012:

a. Complainant's former supervisor repeatedly inquired into whether
Complainant had work assigned to him, despite the fact that
Complainant's current supervisor was present and available to assign
Complainant work;

b. management required Complainant to turn in Complainant's building
access card while Complainant was on leave; and

c. Complainant’s former supervisor mentioned Complainant's disability
status in the presence of a coworker.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of his right to request a hearing before an Equal
Employment Opportunity Commission Administrative Judge (AJ). At Complainant’s request,
the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision
concluded, with respect to Claim #1, that the allegations of that claim should be dismissed for
untimely contact with an EEO counselor and, with respect to Claim #2, that Complainant
failed to prove that the Agency subjected him to discrimination as alleged. From that decision
Complainant brings the instant appeal.

ANALYSIS AND FINDINGS

As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R.
§ 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29
C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29
C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard
of review “requires that the Commission examine the record without regard to the factual and
legal determinations of the previous decision maker,” and that EEOC “review the documents,
statements, and testimony of record, including any timely and relevant submissions of the
parties, and . . . issue its decision based on the Commission’s own assessment of the record
and its interpretation of the law”).
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Claim #1 (Hostile Workplace Harassment)
EEOC Regulation 29 C.F.R. §1614.105(a)(1) requires that complaints of discrimination be
brought to the attention of an EEO Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45)
days of the effective date of the action. A complaint alleging a hostile work environment will
not be time barred if all acts constituting the claim are part of the same unlawful practice and
at least one act falls within the filing period. See Nat'l R.R. Passenger Corp. v. Morgan, 536
U.S. 101 (June 10, 2002). [Complainant] v. Dep't of the Navy
In this case the incidents giving rise to Claim #1 are alleged to have occurred between October
2009 through November 22, 2011. Complainant initiated contact with an EEO counselor
concerning these events on August 23, 2012, well beyond the 45-day notice period with respect
to any of the events involved in the alleged pattern of harassing behavior. The rule of Morgan
does not apply to Claim #1 because none of the allegedly harassing acts falls within the 45-day
period. For that reason, the Agency correctly dismissed Claim #1 as untimely.
, EEOC Appeal No.
0120142124 (Oct. 30, 2014).
Claim #2a (Inquiries About Complainant’s Work Assignments)
To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). He must generally establish a prima facie case by demonstrating that he
was subjected to an adverse employment action under circumstances that would support an
inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The
prima facie inquiry may be dispensed with where the Agency has articulated legitimate and
nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens,
460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No.
05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a
preponderance of the evidence, that the Agency's explanation is a pretext for discrimination.
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v.
Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256
(1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request No, 05950351 (Dec. 14,
1995).

Complainant contends that during July 2012, S1, a supervisory employee who was not
Complainant’s direct superior, repeatedly asked Complainant whether he had been assigned
enough work to do. Complainant regarded this questioning by S1 as harassment since S1 was
disregarding the established chain of command by making inquiries of an employee whom he
did not supervise. The Agency explains that S1 asked Complainant about his workload
because he had been assigned to serve temporarily as “duty officer” whose responsibility it
was to assure that line employees, including employees not within the duty officer’s chain of
command, had sufficient work assigned to them. (ROI at 9.) This is a legitimate,
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nondiscriminatory reason for the Agency’s actions. Complainant has adduced no evidence that
the Agency’s explanation for its action was a pretext designed to conceal discriminatory
animus.
To the extent that Complainant is contending that S1’s actions constitute hostile workplace
harassment, Complainant has not shown that his workplace was so “permeated with
discriminatory intimidation, ridicule, and insult that were sufficiently severe or pervasive to
alter the conditions” of his employment. Meritor Savings Bank v. Vinson, 477 U.S. 57, 65, 67
(1986) Further, a reasonable person in Complainant's position would not have found the
alleged actions to be hostile or abusive. The Commission recognizes that not every unpleasant
or undesirable action which occurs in the workplace constitutes an EEO violation. See Shealey
v. EEOC, EEOC Appeal No. 0120070356 (Apr. 18, 2011).
Claim #2b (Required to Surrender Building Access Card)
On July 11, 2012, after a confrontation with a manager, Complainant requested “medical
leave, effective immediately,” left the Agency’s facility and did not return to full time duty at
any time during the relevant period. Complainant alleges that in September 2012, he briefly
visited the facility to attend to an administrative matter. During that visit, a supervisor asked
Complainant to surrender his building access card which he did. Later he learned that another
employee on medical leave had not been required to surrender his building access card.
Complainant alleges that denying him access to the Agency facility while he was on medical
leave was discriminatory.
The Agency explains that Complainant was asked to surrender his building access card because
a supervisor and several union members had expressed concerns about perceived threats to
employee safety presented by Complainant during his occasional visits to Agency premises
during his medical leave. ROI at 14. This is a legitimate, nondiscriminatory reason for the
Agency’s actions. Complainant has adduced no evidence that the Agency’s explanation for its
action was a pretext designed to conceal discriminatory animus.
Claim #2c (Disclosure of Disability Status)
Complainant contends that on August 23, 2012, he went to the Agency facility to deliver a
document authored by his physician concerning Complainant’s disability. The only supervisor
on duty was S1 whom Complainant approached in the office of a co-worker, CW1.
Complainant presented the document to S1 and asked him to sign a receipt acknowledging
delivery. S1 read the document but refused to sign the receipt, telling Complainant to deliver
it to the front office. According to Complainant, after reading the document S1 also stated to
Complainant and in the presence of CW1 that the Agency “needed a medical diagnosis and
prognosis of [your] disability.” Complainant alleges that S1’s making this statement in the
presence of CW1 constitutes an impermissible disclosure of confidential medical information in
violation of the Rehabilitation Act.
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We need not address the question of whether such a disclosure would violate the Rehabilitation
Act because the preponderance of the record evidence establishes that S1 did not make the
statement attributed to him by Complainant. S1 denies making the statement. In his affidavit,
S1 states that during the conversation in question he did not mention Complainant’s disability,
stating only that Complainant “needed to take it to the front office because I [S1] could not take
action on his request for a six month leave of absence.” ROI at 249. Similarly, CW1
acknowledges being present during the conversation between Complainant and S1 but does not
support Complainant’s testimony as to the statement made by S1. In her affidavit, CW1 states:
“I do not recall [S1] making any comment in front of [Complainant] about a mental disability,
diagnosis or prognosis. . . ” ROI at 315. Because the evidence does not establish that S1 made the
statement attributed to him, we find that Complainant has not proven that the Agency made an
improper disclosure of confidential medical information.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Agency’s final decision.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)

The Commission may, in its discretion, reconsider the decision in this case if the Complainant
or the Agency submits a written request containing arguments or evidence which tend to
establish that:

1. The appellate decision involved a clearly erroneous interpretation of material
fact or law; or
2. The appellate decision will have a substantial impact on the policies, practices,
or operations of the Agency.

Requests to reconsider, with supporting statement or brief, must be filed with the Office of
Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. See
29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R.
Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments
must be submitted to the Director, Office of Federal Operations, Equal Employment
Opportunity Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a
legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail
within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604.
The request or opposition must also include proof of service on the other party.

Failure to file within the time period will result in dismissal of your request for reconsideration
as untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your request for reconsideration. The
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Commission will consider requests for reconsideration filed after the deadline only in very
limited circumstances. See 29 C.F.R. § 1614.604(c).

COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610)

You have the right to file a civil action in an appropriate United States District Court within
ninety (90) calendar days from the date that you receive this decision. If you file a civil
action, you must name as the defendant in the complaint the person who is the official Agency
head or department head, identifying that person by his or her full name and official title.
Failure to do so may result in the dismissal of your case in court. “Agency” or “department”
means the national organization, and not the local office, facility or department in which you
work. If you file a request to reconsider and also file a civil action, filing a civil action will
terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z0815)

If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may
request permission from the court to proceed with the civil action without paying these fees or
costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may
request the court to appoint an attorney for you. You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission. The court
has the sole discretion to grant or deny these types of requests. Such requests do not alter the
time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File
a Civil Action for the specific time limits).

FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

September 25, 2015
Date